The chief Government adviser on devolution law has delivered a damning
critique of Alex Salmond’s complaints that the UK Supreme Court is
riding roughshod over the Scottish legal system.

Lord Wallace of Tankerness, the Advocate General for Scotland, questioned whether Mr Salmond and his Justice Minister had even bothered to read the court’s judgements that have triggered the furore.

He also revealed the appointed some of the country’s most senior legal experts last autumn to review the court and they gave their “unanimous” seal of approval. Mr Salmond has announced this week he is to set up his own “expert group”.

One of the country’s most senior lawyers intervened last night to argue the escalating controversy could be eased by appointing a third Scottish judge to the court.

Paul McBride QC told the Daily Telegraph this would mean a majority of the five Supreme Court judges who usually hear Scottish cases would have legal expertise north of the Border.

The interventions place more pressure on the First Minister over his argument that the court must be barred altogether from hearing Scottish appeals on human rights grounds.

Kenny MacAskill, the Justice Minister, yesterday refused to apologise for claiming that the court’s judges’ experience of Scotland is limited to annual visits to the Edinburgh Festival. Two are former Lord Justice Generals of Scotland.

Instead both he and Mr Salmond want cases forwarded directly to the European Court of Human Rights in Strasbourg, where there are no Scottish judges.

The row has been prompted by two high-profile judgements, the most recent of which saw Nat Fraser last week win his appeal against his conviction for murdering his wife, Arlene.

But Lord Wallace, the former Deputy First Minister and Scottish Liberal Democrat leader, delivered a withering response to Mr Salmond’s complaints.

“The Supreme Court has made clear as recently as last week in the Fraser ruling that the High Court in Scotland remains the court of last resort on criminal matters. I sometimes wonder if those who are the most vociferous have read these rulings,” he said.

‘I will be interested in what the Scottish government and their new expert group have to say but I imagine that if they take evidence from the same people they will hear the same argument.”

In a direct challenge to Mr Salmond, the Advocate General said his review team included Sir David Edward, a former judge of the European Court of Justice, and Lord Boyd, a former Lord Advocate, and several senior QCs.

Their backing for the court was supported by the Law Society of Scotland, the Faculty of Advocates and the Scottish Human Rights Commission.

Lord Wallace questioned why Scots should not have their human rights protected in the same manner as people from the rest of the UK.

He said SNP ministers have failed to explain why a British court “that has two of the foremost Scottish judges of their generation” is less preferable than a court in Strasbourg with “no Scottish judges and a 140,000 backlog of applications”.

Lord Wallace also criticised a threat by Mr MacAskill to withdraw Scotland’s £500,000 annual contribution to the court’s costs, arguing this threatened “the rule of law and the independence of the judiciary”.

The Law Society further undermined the SNP by arguing the real issue was not where appeals are heard, but ensuring that Scottish law complies with the European Convention on Human Rights (ECHR).

Referring to the Fraser ruling, Cameron Ritchie, its president, said: “The events of the last week have only served to underline the need for this kind of evaluation to take place and as a matter of some urgency.”

Mr McBride, who defended Fraser in his original 2003 trial, yesterday called for an end to the hyperbole on both sides and a rational debate on possible solutions.

“In the event of the Supreme Court dealing with Scottish convictions, there should be an additional Scottish judge appointed so you have a bench of five with a majority of Scottish judges,” he said.

He also argued that the situation that exists in England, whereby the High Court can refuse leave to appeal to the Supreme Court, should be replicated in Scotland. Criminals north of the Border can currently appeal directly to the London court.